‘Green monster' could wreck both property rights and the rule of law
The green paper on land reform, finally made public on 31st August 2011, is part of a new assault on the Constitution and the rule of law.
On the same day as the green paper was released, the deputy minister of correctional services, Mr Ngoako Ramatlhodi, let the cat out of the bag when he said the African National Congress (ANC) had made ‘fatal concessions' at the time of the political transition (see full article here). Given the balance of forces at the time (including the collapse of the Soviet Union), it had accepted a Constitution which ‘emptied the legislature and executive of real political power' and ‘immigrated (sic) the little power left [to them] to civil society and the Judiciary'. [The Times 1 September 2010]
Mr Ramatlhodi seems to forget that the 1996 Constitution was drafted by an elected constituent assembly dominated by the ANC. In addition, it reflects a very wide-ranging consensus that the new South Africa should be a constitutional democracy in which Parliament and the Cabinet would have to act in accordance with constitutional principles and provisions, failing which both law and executive action could be set aside by a Constitutional Court charged with the task of upholding the Constitution at all times.
Already the ANC has white-anted the Constitution in various ways, and particularly via its strategy of cadre deployment. The green paper on land reform goes much further, for it seeks to oust the jurisdiction of the courts in two key spheres
in determining the amount of compensation payable on the expropriation of land, a task it gives to a state official (a new valuer-general) in place of the courts;